Court Dismisses Retaliation Claim; Termination Closely Followed Plaintiff’s Involvement in Altercation at Work

In Ciulla-Noto v. Xerox Corp., No. 16-CV-6362-FPG, 2017 WL 491688 (W.D.N.Y. Feb. 7, 2017), the court dismissed plaintiff’s retaliation claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

In sum, plaintiff filed an EEOC charge alleging disability and gender discrimination. About a year later, plaintiff was involved in an altercation with a co-worker (Arena). Plaintiff claimed that the “real reason” defendant fired her was to retaliate against her for previously opposing discrimination in the workplace – including by filing her EEOC charge and filing several previous discrimination and retaliation complaints.

The law:

Title VII prohibits employers from discriminating against an employee because that employee “has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Similarly, the ADA provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” To state a claim for retaliation under either Title VII or the ADA, a plaintiff must plausibly allege that: (1) the defendant discriminated—or took an adverse employment action—against her, (2) “because” she opposed a practice made unlawful by the relevant statute.

With respect to the second prong, a plaintiff must plausibly plead a causal connection between her protected activity and the adverse employment action. Retaliation must be the “but-for” cause of the adverse action, meaning that the adverse action would not have occurred in the absence of a retaliatory motive.

Applying the law, Judge Geraci explained:

Here, Plaintiff’s complaint falls short of that standard. Plaintiff filed her EEOC charge alleging gender and disability discrimination on August 23, 2013, and the EEOC issued its determination a month later. On October 7, 2014, over a year after Plaintiff had engaged in protected activity but less than two weeks after she had been involved in a heated altercation with her co-worker Arena, Xerox decided to fire both Plaintiff and Arena. Although retaliatory purpose may be shown indirectly by alleging that the protected activity was followed “closely in time” by an adverse employment action, no such inference is reasonable in this case.

The bulk of Plaintiff’s complaint is dedicated to her allegation that Xerox’s stated reason for firing her—namely, that Plaintiff violated the Xerox Code of Conduct by using inappropriate language—was erroneous. At this stage of the litigation, the Court assumes that Plaintiff’s version of the events on September 25, 2014 is accurate and that Plaintiff did not use inappropriate language. But even so, Plaintiff has not alleged sufficient facts to raise Plaintiff’s right to relief above the speculative level. Rather, given Plaintiff’s factual allegations, it is much more plausible that Xerox either (1) made a mistake in concluding that Plaintiff had used inappropriate language or (2) decided to adopt a zero-tolerance attitude towards disruptive confrontations at work by firing both employees who had been involved. … Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.

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